GERON Vs. RIKHAB CHAND

JUDGEMENT

(1.) This is an application in revision by Smt. Geron wd/o Dhukaji of Bhinmal against the order of Munsiff, Bhinmal dated January 17, 1976, by which her application under Order 21, r. 100 was rejected.

(2.) The non-petitioner No. 1 Rikhabchand and non-petitioner No. 2 Sanwalchand are sons of the petitioner; Non-petitioner No. 1 Rikhabchand obtained a decree for ejectment against the non-petitioner No. 2 Sanwalchand in respect of the house in dispute on December 16, 1972 from the Court of Munsiff, Bhinmal. This decree was confirmed in appeal. In execution of the decree, Rikhabchand proceeded to take possession of the disputed house and came with an amin appointed by the Court on August 17, 1975. The petitioner resisted the delivery of possession. She submitted an application under Order 21, R., 97 C.P.C. on August 18, 1975 as she apprehended forcible dispossession but it was dismissed on the ground that she was not competent to make the application, as it is only the decree-holder who can move the Court under Order 21, R. 97 C.P.C. in case of resistance or obstruction in taking possession of the property, in respect of which the decree has been passed. Subsequently, the petitioner was dispossessed. Thereafter, she submitted an application on September 17, 1975 under Order, XXI, R. 100 C.P.C. complaining about her dispossession from the house in dispute. It was prayed that the possession, which has been forcibly and illegally taken from her, may be restored to her. Non-petitioner No. 1 filed his reply to the application on September 27, 1975. He contested the application on various grounds, and prayed that her application may be dismissed. Non-petitioner No. 2 also filed reply to the application on September 27, 1975. In his reply, it was stated that the house is dispute is in of the petitioner and nobody other than her has right, title or interest in it. On September 27, 1975, the learned counsel for the petitioner filed certain documents and learned counsel for the non-petitioner sought an adjournment for filing documents. On October 4, 1975, learned counsel for the non-petitioner filed certified copies of certain documents. On that day, the case was ordered to be posted for hearing on October 25, 1975. On October 25, 1975, the case was of the Court was fixed for arguments on December 13, 1975. The Presiding Officer of the Court was on leave on December 13, 1975 and the case was adjourned on January 9, 1975. Time was sought for arguments on January 9, 1976, it was adjourned to January 19, 1976. On January 17, 1976, affidavits of Bhavaji and Hajarimal, were submitted. Arguments were heard on that day. The learned Munsiff, after considering the material on record, came to the conclusion that the petitioner has not been residing in the house in dispute on her own account. In this view of the matter, he dismissed the petitioner's application on the same case. Feeling aggrieved by this order, the petitioner has come up in revision to this Court.

(3.) I have heard Mr. N.K. Daiya for Mr. S.C. Bhandari for the petitioner and Mr. H.C. Jain for the decree-holder non-petitioner No. 1.